GAO Concludes "Debriefing Safe Harbor" For Timeliness Purposes Does Not Apply To FAR 36.6 Brooks Act Architect-Engineer Procurements

May 24, 2012

On May 22, 2012, the Government Accountability Office (“GAO”) held that the timeliness exception for required debriefings, whereby a protest is timely if it is filed within 10 days of the date the disappointed offeror receives a debriefing, does not apply to debriefings provided in the context of an architect-engineer (“A/E”) Brooks Act procurement conducted pursuant to FAR 36.6. See McKissack-URS Partners, JV, B-406489.2; B-406489.3; B-406489.4.

In accordance with the two-step FAR 36.6 procedures, the protester submitted a SF 330 qualifications statement, and was one of the shortlisted firms that the agency selected for discussions. However, another offeror was selected for the initial contract negotiations. The protester received such notification on February 28, 2012 and requested a debriefing the next day. After making several additional requests for a debriefing without receiving a debriefing, the protester filed its protest on March 26, 2012.

In dismissing the protest as untimely, the GAO held that any debriefing requested or provided for a Federal Acquisition Regulation (“FAR”) 36.6 acquisition is not a required debriefing, because unlike FAR Part 15 procurements, Brooks Act A/E acquisitions conducted under FAR 36.6 do not utilize "competitive proposals." Therefore, a request for a debriefing made within 3 days of an agency notice does not excuse a disappointed offeror from filing a protest within 10 calendar days of when it knew or should have known the grounds of its protest. See 4 C.F.R. § 21.2(a)(2).

This is an important ruling for any entity that competes for A/E contracts. Moreover, knowledge of the GAO’s new timeliness holding is critical to minimizing the chances that a GAO bid protest concerning an A/E acquisition will be dismissed as untimely. 

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